Alberta Bands Continue Court Battle Challenging Bill C-31

By Clint Buehler

EDMONTON – A challenge to Bill C-31 by northern Alberta’s Sawridge First Nation that began a dozen years ago will be tested again in Federal Court here this year.
Tsuu T’ina First Nation, on the outskirts of Calgary, is pursuing the same challenge, which will be heard at the same time. The Ermineskin band at Hobbema was also a plaintiff in the first case.

Recognized interveners in the case include the Congress of Aboriginal Peoples, the Non-Status Indian Association, the Native Women’s Association of Canada and the Alberta branch of the Native Council of Canada.

The court has penciled in 134 court days for the case.
The bill allows female former band members to regain the Indian status and band membership they lost by marrying off reserve. The decision in this case would not only affect Sawridge enfranchised women, but other Aboriginal women across Canada.

According to the Native Council of Canada, prior to Bill C-31, under the Indian Act, those who lost their Indian status included:
• Indian women who married non-Indian men (Native men who married non-Indian women did not lose their status and their wives and the children of their union were allowed to live on reserve and became status Indians.
• Indians who took scrip (which gave them $200 and a quarter section of land in return for their Indian status and the Indian status of their descendants.).
• Indians who were “enfranchised,” or stripped of their status for any reason, including wanting to vote, to drink alcohol, to own property, to live in another country, or to become a lawyer or clergyman.
• Indians who served in the Armed Forces.

This is the third court challenge for the Sawridge First Nation.
The initial hearing was launched by Sawridge Chief Walter Twinn in 1985. By then, under his leadership, Twinn had built a band-owned business empire estimated at $14 to $75 million, depending on who was doing the estimating. (Current estimates put the value of Sawridge assets as high as $250 million, making it one of the wealthiest First Nations in Canada, with a variety of assets that includes hotels in Slave Lake, Jasper and Fort McMurray.)

After Bill C-31 was passed in 1985, Sawridge received about 400 applications for membership from that Chief Twinn labeled as from “opportunists.”

Sawridge then had—and still has—less than 50 members.
The Sawridge challenge argued the 1999’s Treaty 8 and the v1982 Canadian Constitution grant it the right to say who can be Sawridge members, and contend that before Treaty 8 it had a “woman follows man” tradition for establishing where a couple lived after marrying.

The case, heard in Edmonton and Ottawa over eight months, heard testimony from women who had lost their status, Elders and other witnesses. Twinn and his co-plaintiffs contended that their challenge was not racist or sexist, but about who controls band membership and was an effort to protect their communities.
They also emphasized that they were not challenging the right of enfranchised Indians to regain Indian status through Bill C-31, but just their right to regain band membership.
(Walter Twinn was later appointed to the Senate of Canada by Prime Minister Brian Mulroney.)

Sawridge and its co-plaintiffs lost the first challenge in 1995, but were given the right to a second trial when they successfully argued that the original judge had “reasonable apprehension of bias.”

Chief Twinn called Federal Court Justice Francis Muldoon’s judgment “insulting, degrading, without legal merit and amounting to a judge’s personal statement of political beliefs rather than a reasoned determination of legal issues” and “the most anti-Indian pronouncement of recent judicial history.

“It means that band members who live on or off reserve have no say in who is or who is not a member,” Twinn said.
Catherine Twinn, Walter’s wife—and now his widow—who was legal counsel for the plaintiffs in the first case, said “it’s not just where you draw the line, but who draws the line. Who has the powers.”

She warned that accepting people in the communities who may have never lived on the reserve could be dangerous. Those band members would have the power to vote and could and could possibly unite and, if they outnumbered the long-term community members, could vote liquidate band assets and sell the land.

(Interestingly, Catherine Twinn, who was born Metis, herself gained Indian status under the old rule, first by marrying Eric Shirt of the Saddle Lake Cree Nation, who she later divorced, then marrying Walter Twinn.)

After the second trial in 2003, however, Sawridge was ordered to add 11 women to their membership list who had lost their entitlement by marrying off-reserve.

“From a political and legal perspective,” Congress of Aboriginal Peoples lawyer Janet Hutchinson told the Edmonton Journal, “this case is certainly a very significant issue and one that should set precedents that affect other bands and other First Nations, other C-31 individuals across Canada.

“I am certain that here are still many, many Bill C-31 individuals in Canada whose membership status is still up in the air.”
According to the Native Council of Canada (NCC), when Bill C-31 passed, of the more than 600 bands in Canada, a total of 79, or 13 per cent, faced a population increase of more than 100 per cent. The majority, 379 bands or 62 per cent faced membership increases of between 10 and 30 per cent.

But not all, or even most, of those reinstated band members want to live on the reserves.

The NCC conducted a random survey of Indians affected by Bill C-31, and less than one-half of those surveys wanted to return to their band. Of those, about 70 per cent wanted band membership so they could regain some of their culture, not to go home to live on the reserve.